9th Circuit hears oral arguments

On Wednesday, September 10, 2003, a panel of three judges from the Court of Appeals for the 9th Circuit vigorously questioned attorneys from the Department of Justice, the new Joint Tribal Coalition, and the scientists.

The original 40-minute schedule called for 20 minutes for each side to address the panel. However, the judges' questions lasted 65 minutes. The Department of Justice attorney was up first, and the judges launched into their questions immediately.

The judges were obviously well briefed and zeroed in on the core issue: the meaning of Native American and how far back in time Congress intended NAGPRA to apply. Despite the efforts of the tribal attorney, up second, to move on to other issues on appeal, the judges kept their attention focused on their topic of concern. They must decide whether or not to uphold the district court's opinion that the agency definition of Native American is unreasonable.

The established appeals process is rigorous and fair to all sides

The Appeals Court follows a well-established written briefing process prior to an oral hearing. Last spring, the Department of Justice and the Coalition each filed 14,000-word opening briefs. Although briefs were limited in length, the number of supporting documents cited in the briefs and filed with the Court was not limited. Three friends of the court (amici) briefs, each limited to 7,000 words, were filed in support of the Coalition and agency appeals issues.

In late May, 2003, the scientists filed two 14,000-word response briefs to address the two opening briefs. Their supplemental record contained documents in excess of 1500 pages. Seven amici briefs (each limited to 7,000 words) were filed in support of the scientists.

On July 1, 2003, the Department of Justice and Coalition filed their final reply briefs, which were limited to 7,000 words plus their supporting documents. In all, several thousand pages of documents concerning the lower court's opinion and the issues on appeal were filed.

On September 10, 2003, the judges used the extremely limited oral hearing time to address issues about which they had questions. Although they did not allow discussion on all the issues included in the briefs (e.g., cultural affiliation), this doesn't mean they'll ignore the issues in their opinion.

The 3-judge panel are informed by the extensive written arguments submitted by the various attorneys. The burden to convince the Court lies in the merit of the arguments presented. The Court will weigh the opposing views and render their opinion in the months to come.

When we receive the official account, we'll post the questions and answers accurately and completely. The transcript will offer an impartial account of the proceeding.

Voice your views

Congress needs to hear a clear message: agencies must be held accountable for their decisions and actions. The Army Corps, the Department of the Interior, and the Department of Justice have spent millions of tax dollars defending untenable actions for seven years, only to shift to another untenable tactic: telling the court they have no qualified claimant (see Schneider, Kennewick Man: The Three Million Dollar Skeleton at http://www.friendsofpast.org/kennewick-man/news/021128-3mil.html)

You can help. Write to your congressional representatives to insist on agency accountability. Recommend an immediate review of the decision-making process and the excessive costs associated with defending an ill-founded position. Congress must hold the bureaucrats in Washington DC and in Washington State accountable for their actions in the Kennewick Man case.

Please take a few minutes to email your comments to Senators and
Representatives on Capitol Hill (email addresses) and newspaper
editors in your area.